Myer v The King - [2023] HCASL 161

MYER
v
THE KING
[2023] HCASL 161
B47/2023

The applicant requires an extension of time within which to apply for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Queensland (Bond JA, McMurdo and Dalton JJA agreeing), which allowed an appeal against conviction on the count of rape (count 12), quashing that conviction and entering a judgment of acquittal in relation to that count, but otherwise dismissed the appeal against conviction on the counts of unlawful and indecent dealing with a child under 16 years (counts 1 to 11) and also dismissed an application for production of specific documents and for leave to adduce evidence on appeal.
There is no reason to doubt the correctness of the decision of the unanimous Court of Appeal in dismissing the appeal against conviction on counts 1 to 11 and the application for production and for leave to adduce evidence on appeal. In relation to the latter argument, it rested on the applicant's assertion and speculation, there being no evidence in the appeal record to suggest that there had been a failure by the Crown to disclose or to meet a request for disclosure. The document now sought to be relied upon by the applicant in this Court was not before the Court of Appeal. This Court does not have the power to receive fresh evidence in its appellate jurisdiction: Eastman v The Queen (2000) 203 CLR 1.
Accordingly, any appeal to this Court would enjoy no prospects of success and it would be futile to grant the extension of time sought. Special leave should be refused.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.

M.M. Gordon S.H.P. Steward

9 November 2023

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Myer v The King

Details

AGLC: Myer v The King [2023] HCASL 161
Case: [2023] HCASL 161
Decision Date

CaseChat Overview and Summary

Myer, the applicant, sought an extension of time to apply for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The Court of Appeal had allowed an appeal against conviction on the count of rape but dismissed the appeal against convictions on counts of unlawful and indecent dealing with a child under 16 years. Additionally, it dismissed an application for production of specific documents and for leave to adduce evidence on appeal. The applicant sought to rely on a document that was not before the Court of Appeal, which the Court of Appeal could not consider. The applicant argued that there was a failure by the Crown to disclose, but there was no evidence in the appeal record to suggest this.

The legal issues before the Court were whether the applicant's appeal had prospects of success and whether it was in the interests of justice to grant the extension of time. The Court examined the merits of the appeal, finding no evidence to support the applicant's assertions. The Court noted that it did not have the power to receive fresh evidence in its appellate jurisdiction, and therefore, the appeal would enjoy no prospects of success and would be futile to grant the extension of time sought.

The Court found that the application for special leave should be refused, as there was no reason to doubt the correctness of the decision of the unanimous Court of Appeal in dismissing the appeal against conviction on counts 1 to 11 and the application for production and for leave to adduce evidence on appeal. The Court concluded that it would be in the interests of justice to dismiss the application. Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), the Registrar was directed to draw up, sign and seal an order dismissing the application.

Orders